R v Nicholas Stuttle

Once a jury has retired, it must not receive additional evidence or material, save for exceptions not relevant here. Material discovered within an admitted exhibit may nevertheless be new evidence where it was not examined, adduced or intrinsically connected with the exhibit relied on at trial.

Where extraneous material reaches the jury, the question is whether the conviction remains safe. The court must assess its prejudicial significance, whether the defendant had a proper opportunity to address it, the most prejudicial interpretation available to the jury, and any effective judicial mitigation. A conviction is unsafe where significant new material bearing on the sole issue reached the jury without an opportunity for response or a direction.

The appellant was convicted at the Crown Court at Southampton of dangerous driving and aggravated vehicle taking. Identity was the sole disputed issue. The prosecution alleged that he was the driver of a stolen car and relied, among other matters, on a grey hoodie found near his arrest.

After retiring, the jury examined the hoodie and found inside it a bank card apparently belonging to the appellant’s girlfriend. The card had not been discovered by the police, adduced in evidence or addressed during the trial. The judge declined to discharge the jury after being told that it had reached verdicts.

The appeal asked whether the discovery of the card amounted to new evidence after retirement and, if so, whether the resulting convictions were unsafe.

1. Appeal allowed. The convictions for dangerous driving and aggravated vehicle taking were unsafe and were quashed.

2. The established starting point is that, after retirement, a jury must not be given additional evidence, matter or material to assist it. The court applied the safety approach drawn from R v Deny [2013] EWCA Crim 481, R v Thompson [2010] Cr App R(S) 27, R v Lawson [2007] 1 Cr App R 20 and R v Docherty [1999] 1 Cr App R(S) 274. The decisive question was whether the material struck at trial fairness because the jury had considered adverse material which the defendant had had no proper opportunity to address, and therefore whether the convictions were safe.

3. The bank card was, in substance, new evidence. Although the hoodie was an exhibit, the card was distinct from it. It had not been referred to or adduced at trial, was not intrinsically linked to the hoodie, and was first discovered by the jury. The situation was analogous to R v Kaul [1998] Crim LR 135, where articles found inside an exhibited rucksack were treated as new evidence.

4. The new evidence was significant. The card could link the appellant’s girlfriend to the hoodie, the hoodie to the appellant, and the appellant to the driver. That bore directly on the sole issue of identity. The appellant had no opportunity to investigate or explain whether the card belonged to his girlfriend, or how and when it came to be in the hoodie or exhibit bag.

5. No direction was given that the card was not evidence and should be ignored. The jury’s note itself showed that it had considered the card important. The combination of significant new evidence, no opportunity to answer it, and no judicial direction rendered both convictions unsafe.

• Court of Appeal (Criminal Division) — Allowed the appeal against conviction and quashed both convictions: [2025] EWCA Crim 256.
• Crown Court at Southampton — On 4 April 2024, convicted the appellant of dangerous driving and aggravated vehicle taking and imposed concurrent suspended sentences.